Search This Blog

No deal would create the next Windrush scandal overnight

If you are reading this you probably read about Brexit a lot, so: what do you think would happen to EU citizens in the UK if Britain left without a deal?

The main thing on this topic that people will have heard about it is "settled status", the new kind of immigration status for Europeans who've been living in the UK. That will give people a secure and provable right to be in the country. But the scheme has only been piloted, for a few thousand people. It's intended to be fully open by... the end of March, when no deal would happen.

Maybe you heard when the immigration minister got in an embarrassing tangle about this question in front of the Home Affairs committee last October. It was a mess; there were good photos of Yvette Cooper looking perplexed. Caroline Nokes suggested that employers would have to check if their EU workers complied with a post-Brexit immigration system which, she admitted a few moments later, would not actually exist. Sajid Javid had to come out the next day to clean up. A subsequent letter from Nokes said that EU citizens wouldn't, at least initially, face any extra checks in a no-deal scenario.

Or maybe you remember, earlier last year, government-friendly papers touting a promise that free movement would end on the day of Brexit. The specific proposal - which was completely pointless, but apparently real - was that new EU migrants would have to register with authorities in order to live or work in Britain. And that was if there was a deal, and transition period - so surely at least that level of checks would apply without a deal? There hasn't been much talk about this since, though, so who could say?

If you're really interested in these things, you might have read the new immigration bill. It doesn't really say anything, but it does repeal free movement rights, which by default would mean that all three million EU citizens in the UK would need some other kind of permission to be in the country - which, obviously, none of them would have. It's not actually clear to me how that bill coming into effect would be compatible with the settled status scheme, or the transition period - but the bill has now been shelved anyway, while Parliament spins continually on the meaningful-vote merry-go-round, so not to worry.

To some extent I am exaggerating the confusion here. If you read this blog post by Colin Yeo you will get a pretty clear picture of what no deal would mean for EU migrants' legal situation: free movement until further notice if the immigration bill hasn't passed, or chaos if it has.

But in the hostile environment, immigration policy is no longer exclusively, or even mainly, enforced by people who are reading Colin Yeo's blog or anything like it. In the days after no deal, when TVs are showing pictures of trucks queuing at Dover and almost all the news is about Britain's dramatic rupture with Europe, how many landlords will have read Caroline Nokes' clarifying letter to the Home Affairs committee? How many employers will know that the EEA Regulations (2016) remain on the books in accordance with Section 2 of the EU Withdrawal Act?

Optimistically, people in other parts of the public sector - NHS administrators, people authorising benefits claims - will get guidance on this.

But there is no way for the government to deliver that information to every business and every landlord in the country. It will be perfectly natural for those people to assume that something significant has changed and EU nationals cannot just show a passport as proof of their status.

And thanks to the two most recent Immigration Acts, landlords and employers can face not just fines but prison sentences if they engage people without legal status. The benefit of the doubt - and since even those of us following closely don't know what the law will be, there will be plenty of doubt - is not going to be with migrants.

If you look at reviews of the Windrush scandal, you will find that there are 164 identified cases where the Home Office wrongly took direct enforcement action against people. The deportations and detentions are scandalous, but compared to the number of people who could have been affected, it's not that many. The hostile environment - where complex and uncertain status rules are enforced, on pain of jail time, by people who have no training in them - is what means injustices can occur on a huge scale, without oversight.

No deal would mean over three million people with suddenly far more complex and uncertain immigration status, suddenly subject to the full caprice of that system. Probably people wouldn't get fired or evicted on day one. But people change jobs, and move houses. The hostile environment is designed to make that difficult. Combined with no deal, it would create a catastrophe.